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Walton v. State

Court of Criminal Appeals of Tennessee, Jackson

May 10, 2017


          Session: March 7, 2017

         Appeal from the Criminal Court for Shelby County No. 11-02773 Lee V. Coffee, Judge No. W2016-01395-CCA-R3-PC

         Jeffrey Walton ("the Petitioner") was convicted of vandalism over the value of $10, 000 and burglary of a building and received an effective sentence of twenty-seven years. He filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner argues that second and third trial counsel's performance was deficient because they (1) failed to prepare a trial strategy; (2) failed to investigate the background of Barrow-Agee Laboratories and discover a fatal variance in the indictment; (3) failed to properly cross-examine witnesses; and (4) failed to request jury instructions on the defenses of duress and necessity. The Petitioner asserts that he was prejudiced because absent these deficiencies, he would have likely been convicted of a lesser-included offense or acquitted of the offenses. After a thorough review of the record and applicable case law, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Josie S. Holland, Memphis, Tennessee, for the appellant, Jeffrey Walton.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and James Curwood Witt, Jr., J., joined.



         I. Factual and Procedural Background

         Jury Trial

         In our opinion on the Petitioner's direct appeal of his convictions, this court summarized the testimony at trial as the following:

This case involves the [Petitioner]'s unlawful entry into and vandalism of Barrow-Agee Laboratories ("Barrow-Agee"), a food and drug testing laboratory in Memphis, the evening of January 13, 2011.
Brenda Banks, a chemist and twenty-two-year employee of Barrow-Agee, testified that she closed the building at 6:15 p.m. on January 13, 2011. She said that no one was in the building when she left that evening and that she secured the premises by setting an alarm. When she left, the building was in good condition and none of the damage shown in the photograph exhibits was present.
Thomas Bradberry, a security guard for Barrow-Agee, testified that he received a call around 11:20 p.m. on January 13 that the alarm at the laboratory had been triggered. When he arrived and assessed the scene, he heard some noise coming from the back of the building that sounded like someone running. He observed a hole in the wall where the venting system was located. Bradberry explained that the venting system had been "busted" out and a light was shining outward through the hole. He saw a pair of legs emerge from the hole, and he ordered the person to raise his hands. However, the person went back inside the building. Bradberry was unable to see the person's face, but he saw that the person was wearing an army fatigue jacket and tennis shoes.
Bradberry testified that the building had plate glass windows, making it possible for him to see inside while the officers were searching for the intruder. Through the windows, he saw the intruder's feet partially fall through the ceiling of three separate offices or rooms in the building. He saw the police bring the intruder out of the building in handcuffs and noted that the intruder was wearing the same clothing as the person he had seen earlier trying to exit the hole at the back of the building. He heard the intruder tell the officers that he was homeless and had entered the building looking for something to eat. Bradberry entered the building after the intruder was arrested, and he observed that the ceiling tiles were "tore up" and the doors to several refrigerators and incubators were ajar.
Officer Pierce Hayden with the Memphis Police Department testified that he answered the call at Barrow-Agee. He observed a hole in the south wall of the building and set up a perimeter outside. While the perimeter was being set up, Officer Hayden saw a man wearing a black and white skull cap stick his head out of the hole. Officer Hayden ordered the man to come out of the hole and attempted to grab him, but the man retreated back inside the building.
Officer Hayden testified that he called for a K9 unit to come to the scene, and police maintained the perimeter while the K9 unit searched the building. No one was seen leaving the building while the K9 unit was searching. After the K9 unit emerged unsuccessfully, Officer Hayden and other officers went inside to search. Officer Hayden entered an attic area and began checking the beams and rafters, where he found the intruder in the northeast corner of the building. He ordered the man to come toward them, but the man lost his balance and fell through the ceiling. Officer Hayden followed the man through the hole in the ceiling and took him into custody. At trial, Officer Hayden identified the [Petitioner] as the man he saw trying to exit from the hole in the back of the building and ultimately arrested after the man fell through the hole in the ceiling.

Officer James Oliver with the Memphis Police Department testified that he responded to the scene with a K9 unit. Officer Oliver announced his presence and informed the intruder that he was going to release a dog into the building. When he got no reply, Officer Oliver entered the building with the K9 unit. The dog went to one specific room and indicated on an odor in the room by moving in a circle. The dog's movement indicated that he smelled something but could not determine its precise location. The dog then looked toward the ceiling. Officer Oliver announced his presence again and ordered the person to exit the ceiling, but he received no immediate response. After a minute, he heard someone moving in the ceiling. Officer Oliver exited the building and told the other officers where he heard a noise and an odor was detected by the K9 unit. Officer Oliver thereafter assisted in searching for the suspect, and he observed the suspect fall out of the ceiling from the attic. He identified the [Petitioner] as the man he saw fall from the ceiling.

Officer James Smith, a crime scene investigator with the Memphis Police Department, processed and photographed the scene. Officer Smith stated that a black and white skull cap, a pair of brown gloves, and a yellow flashlight were recovered from the ceiling inside the building.
Edgar Tenent, one of the owners of Barrow-Agee, testified that the laboratory was a freestanding building with thirty to forty rooms and was not open to the public. Tenent was called to the scene in regards to the break-in and, when he arrived, saw the police leading the [Petitioner] away from the building. He had never seen the [Petitioner] before, and the [Petitioner] did not have permission to enter the laboratory. Inside the laboratory, Tenent observed that many ceiling tiles were damaged and insulation had dropped down; wires were hanging through the ceiling in different parts of the building; and cabinet, refrigerator, and incubator doors were opened. He said it was "[j]ust a total mess in a large part of the building." It was determined that entry had been gained into the laboratory through an exhaust fan on the back of the building. Tenent explained that a safety cage covering the exhaust fan had been removed and the concrete around it had been knocked away, allowing entry. Tenent identified numerous photographs of the damage.
Brad Staples, an insurance adjust[e]r, inspected the building on January 14, 2011, the day after the break-in. He observed damage to multiple rooms in the building, stemming from someone crawling around in the heating and air conditioning system located above the acoustical drop tile ceiling. In addition, there was damage to the alarm system, the building had to be repainted, and the insulation had to be replaced. The total value of the damage was $23, 654.74. Staples said that he negotiated for the lowest bids and, although it was possible someone could have done the work for less, no one could have done it for less than $10, 000. He testified that the photographs of the damage exhibited to the jury were accurate representations of the damage he observed in the building.
Following the conclusion of the proof, the jury convicted the [Petitioner], as charged, of vandalism over $10, 000 and burglary of a building.

State v. Jeffrey Walton, No. W2012-01609-CCA-MR3-CD, 2014 WL 465725, at *1-3 (Tenn. Crim. App. Jan. 31, 2014), perm. app. denied (Tenn. May 14, 2014). The trial court sentenced the Petitioner to an effective sentence of twenty-seven years. Id. at *1. On appeal, this court affirmed the Petitioner's convictions. Id. at *4-5.

         Post-Conviction Proceedings

         The Petitioner filed a pro se petition for post-conviction relief on June 12, 2014; after post-conviction counsel was appointed to represent the Petitioner, the petition was amended. At an evidentiary hearing, Edgar Tenent testified that he was an owner of Barrow-Agee Laboratories, which owned the property at 1555 Three Place. He explained that Laboratory Systems, Inc. owned one hundred percent of Barrow-Agee Laboratories. On cross-examination, Mr. Tenent stated that the names of the controlling company, Laboratory Systems, Inc., and its subsidiary, Barrow-Agee Laboratories, were occasionally used interchangeably.

         First trial counsel[1] testified that she had been a practicing attorney for twenty-six years and had practiced criminal defense for almost twenty-five years. She stated that for thirteen years, she had worked as a head of the Felony Preliminary Hearing Team at the Shelby County Public Defender's Office, which handled over three thousand felony cases per year. At the Petitioner's preliminary hearing, the vandalism charge was bound over to the Shelby County Grand Jury, but the burglary charge was dismissed because the trial court determined that, based on the facts, the State "had not presented enough proof that there was an intent to commit a felony theft or assault therein." First trial counsel also noted that the Affidavit of Complaint listed an incorrect address; however, she did not believe that this error was the reason that the burglary charge was dismissed.

         Second trial counsel testified that he had been an attorney for thirty-one years and that he had practiced criminal defense in the Shelby County Public Defender's Office for twenty-one years. He stated that he was currently assigned cases set in the Shelby County Criminal Court and that he worked on between sixty and seventy cases a year. However, during his representation of the Petitioner, he was assigned to the Shelby County Special Prosecution Unit, where he "had many more cases [and] many more trials." He recalled that the Petitioner's case was assigned to the Special Prosecution Unit because he "had at least five or six felonies, at the very least." Second trial counsel stated that the Petitioner made the decision to proceed to trial. He recalled that the State had offered a plea agreement with a four-year sentence with release eligibility after service of thirty percent of the sentence. Second and third trial counsel "begged and pleaded" for the Petitioner to accept the State's plea agreement because based on the facts, the Petitioner was most likely going to be convicted if he proceeded to trial. Second trial counsel could not recall whether the Petitioner insisted that he was innocent of the vandalism and burglary charges. He also did not recall discussing a trial strategy with the Petitioner, but he explained that he "spen[t] more time discussing with [the Petitioner] the fact that [the Petitioner] needed to take the offer, rather than having a trial strategy." He stated that, in his opinion, the Petitioner had "no trial strategy." He testified that he did not discuss possible affirmative defenses with the Petitioner.

         Second trial counsel did not recall how often he met with the Petitioner or whether he specifically gave the Petitioner discovery from the State; however, he stated that it was his practice to give discovery to his clients. He did not recall how the Petitioner's indictment was phrased, and he did not research the victim named in the indictment. He also did not recall how many hours he spent preparing for the Petitioner's trial, and he did not investigate any potential witnesses. Second trial counsel stated that he was not aware of a federal civil suit against the victim in the Petitioner's case and that he did not investigate that issue. He stated that, if he had been aware that the victim had recently agreed to pay a settlement to resolve the civil suit, he would have attempted to introduce the settlement into evidence at the Petitioner's trial. He did not recall that the Petitioner was taken to the hospital after the offense, but he stated that he and third trial counsel "attempted to introduce some medical records[]" at trial. He explained that he "went to the Med personally and served subpoenas[.]" He stated that he never considered retaining an expert witness to testify at trial regarding the Petitioner's injuries. Although he attempted to introduce the Petitioner's medical records into evidence, second trial counsel stated that he did not see the records as "being a defense to either a burglary or vandalism charge[.]"

         Second trial counsel recalled that several witnesses testified that they saw the Petitioner in the building that was vandalized and that witnesses heard the Petitioner "upstairs[.]" When asked if he introduced the Petitioner's medical records in support of a defense that the Petitioner lacked the physical ability to crawl into the rafters of the building, second trial counsel explained that the medical records were not helpful to the Petitioner's case and that "[t]he main reason [that he] was trying to enter those records [was] because [the Petitioner] wanted them entered[.]" Second trial counsel did not recall whether he introduced any proof at the Petitioner's sentencing hearing. He stated that he did not contact any of the Petitioner's family members about testifying for the Petitioner at the sentencing hearing because he "wasn't aware of any possible mitigation." He explained that the only issue at the sentencing hearing was whether the trial court would align the sentences concurrently or consecutively.

         On cross-examination, second trial counsel recalled that, on the day of trial, the State made a second plea offer that was "just a ridiculously good offer." He explained that he "got frustrated" because the Petitioner declined the State's plea offer; therefore, second trial counsel asked third trial counsel to "talk with [the Petitioner] alone" to see if third trial counsel could convince the Petitioner to plead guilty. He agreed that it was his practice to meet with his clients before trial and to determine the best approach for each case. Second trial counsel stated that the Petitioner understood the evidence against him and that he "tried to convey to [the Petitioner] as best [he] could what [he] thought the outcome would be." He explained that he conducted the voir dire during the Petitioner's trial, but third trial counsel handled the remainder of the trial under second trial counsel's supervision. Second trial counsel stated that he discussed trial strategy more with third trial counsel than he did with the Petitioner. He was not aware of anything he would have done differently than third trial counsel in the Petitioner's trial. He stated that even if he had presented evidence pertaining to the "peripheral issues, " such as the Petitioner's medical records or the correct name of the victim business, the evidence would not have affected the jury's verdict.

         On redirect examination, second trial counsel explained that "peripheral issues" were issues that did not directly defend the charges against the Petitioner. He stated that even if there was evidence that the Petitioner did not have the ability to crawl into the attic of the building, it was "indefensible" that the Petitioner fell through the attic. In second trial counsel's opinion, all the "peripheral issues" in the aggregate would not have affected the Petitioner's case. Second trial counsel stated that he "failed [the Petitioner] because [he] didn't get [the Petitioner] to plead to that four years." On recross-examination, second trial counsel stated that the Petitioner never informed him that it was another individual that fell out of the attic of Barrow-Agee Laboratories.

         Third trial counsel testified that, prior to the Petitioner's trial, he had worked on trials as second chair, but the Petitioner's trial was his first trial as first chair. Before third trial counsel began representing the Petitioner, second trial counsel had already obtained the preliminary hearing transcripts, medical records, and the discovery packet. Third trial counsel specifically remembered that, while the Petitioner's case was in general sessions court, the State offered a sentence of three years, and the Petitioner rejected this offer. After the Petitioner's case was bound over to the Shelby County Grand Jury, the State offered the Petitioner a sentence of six years. However, third trial counsel explained that the State later offered the Petitioner a four-year sentence, "which was still good, even up until the morning of trial." Third trial counsel recalled that second trial counsel became "frustrated" when the Petitioner continued to decline the State's plea offer, so third trial counsel informed the Petitioner that he did not "see a strong defense argument that [he] would have felt comfortable presenting to the jury[.]" He also informed the Petitioner that it was the Petitioner's decision to plead guilty or proceed to ...

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